Last month conservation campaign group Wild Justice started legal proceedings against DEFRA over changes that DEFRA had apparently slipped in to General Licence #42 in January, extending the definition of ‘livestock’ which meant permitting the killing of so-called ‘pest’ species to protect pheasants when they were classified as ‘livestock’ (see here and here).
Wild Justice nicknamed this Schrodinger’s pheasant, with a nod to Schrodinger’s cat, because the pheasant’s status seemed to be ‘livestock’ and ‘wildlife’ simultaneously, according to whatever seemed to suit the shooting industry at any given time:
Earlier this week, DEFRA wrote back to Wild Justice to acknowledge that the extension of the definition of ‘livestock’ in this case would not be not lawful and that the terms of General Licence #42 have now been amended to clarify the status of pheasants.
Tom Short, one of Wild Justice’s lawyers at Leigh Day, simplifies the arguments very well with this explanation:
When GL42 was published in January, it appeared that Defra had deliberately sought to extend the definition of “livestock” as set out in 27(1) Wildlife and Countryside Act 1981 by way of footnote 7. This meant that certain Pheasants released from their pens by shooting estates would now be counted as “livestock” rather than wild birds. That matters because as “livestock”, GL42 authorisers user to kill or take Carrion Crows, Jackdaws, Magpies or Rooks to protect the Pheasants.
In particular, Wild Justice was concerned that GL42 went beyond the definition of “livestock” in the WCA 1981, to now include gamebirds “kept in an enclosure or which are free roaming but remain significantly dependent on the provision of food, water or shelter by a keeper for their survival”. The WCA 1981 definition by contrast only includes gamebirds which remain “kept” “for the provision or improvement of shooting”. On that definition, once a Pheasant is let out of the release pens ready for the shooting season, it is no longer kept for the provision of shooting and so its protection cannot be a lawful reason to kill or take Carrion Crows, Jackdaws, Magpies or Rooks under GL42.
Wild Justice asked Defra to justify the extension of the definition. In their response, Defra has agreed to revise the definition, has conceded that it is the WCA 1981 definition that applies and that they cannot extend that definition by including additional wording in the general licences. DEFRA also says that “The Secretary of State does not consider pheasants to be livestock within the meaning of the WCA 81 once they cease to be kept”.
Defra’s agreement to amend footnote 7 also clarifies that gamekeepers cannot claim that Pheasants they have released are “kept” simply by virtue of providing supplementary food “out into the environment”. Supplementary food does not make a wild Pheasant a kept Pheasant. Defra says that “In principle, there is a significant and clear difference between the feeding of dependent kept birds and the provision of supplementary food in the environment”. We might doubt quite how clear that difference is, but certainly it is a reasonable argument (to be judged on the facts of each case) that a “dependent kept bird” would be one that is largely dependent on food in or by the pen.
Related to this, Defra has also confirmed that only shelter that is provided by a gamekeeper “by or within the release pen” is a factor in assessing whether a Pheasant is kept or wild. Any shelter that is provided further away does not bring a Pheasant back into a gamekeeper’s keeping.
Defra has also confirmed that lethal control is a method of last resort and alternatives must always be tried first.
Wild Justice challenged the expansion of the definition of “livestock” footnote 7 and the Secretary of State has conceded that the definition cannot be extended past what is set out in primary legislation. Any gamekeepers hoping to kill Carrion Crows, Jackdaws, Magpies or Rooks to protect Pheasants are only permitted to do so where those Pheasants are still “kept” and not yet wild birds, and only where they have explored non-lethal alternatives. No amount of spreading “supplementary food” or extra bits of shelter away from the release pen can make a wild Pheasant a kept Pheasant.
Wild Justice has three co-directors (Mark Avery, Chris Packham, Ruth Tingay) who work unpaid as volunteers. Their work to get a better deal for wildlife relies entirely on donations so if you’d like to support their work please consider a donation here. If you’d like to hear more about their legal challenges and campaign work, please sign up for their free newsletter here.